Village of Sussex v. Department of Natural Resources, 476

• Decision Date: 28 April 1975
• Docket Number: No. 476,476
• Citation: 228 N.W.2d 173,68 Wis.2d 187
• Parties: VILLAGE OF SUSSEX, a Municipal Corp., Appellant, v. The DEPARTMENT OF NATURAL RESOURCES, Respondent.
• Court: Wisconsin Supreme Court

Page 173

228 N.W.2d 173

68 Wis.2d 187

VILLAGE OF SUSSEX, a Municipal Corp., Appellant, v. The DEPARTMENT OF NATURAL RESOURCES, Respondent.

No. 476.

Supreme Court of Wisconsin.

April 28, 1975.

Hippenmeyer, Reilly & Arenz, Waukesha, for appellant.

Robert W. Warren, Atty. Gen. by Robert B. McConnell, Asst. Atty. Gen., Madison, for respondent.

HEFFERNAN, Justice.

The Department of Natural Resources made a survey of the Village of Sussex water supply and, after a hearing, found, pursuant to sec. 144.025(2)(r), Stats., that the absence of a municipal water system tended to create a nuisance or menace to the health of the community. It ordered the Village of Sussex to prepare plans for construction of an adequate public water supply not later than September 1, 1973, and to construct a public water supply according to approved plans no later than September 1, 1974. The Village of Sussex petitioned the circuit court for Dane county for a judicial review of this order; and on December 4, 1973, the circuit court for Dane county affirmed the Department's order but directed its modification in certain immaterial respects, generally for the purpose of having the order conform with the directions of ch. 227, the Administrative Procedure Act. The circuit court also granted a one year extension of time to comply with the order. The Village has appealed from the order of the circuit court affirming the Department of Natural Resources.

The Village argues that the statute under which the Department purported to act does not give it the authority to order a municipality to construct a public water system; and that, in any event, sec. 66.065, Stats., requires that a city may construct and finance a water plant only after the adoption of an initial resolution and a referendum of the electors of the municipality. In addition, the evidentiary underpinnings of the Department's order are attacked as being insufficient.

The Village also argues that the portion of the order which requires that contaminated wells be sealed takes the property of the private well owners without compensation, in violation of art. I, sec. 13, of the Wisconsin Constitution.

We conclude that, in respect to each of these propositions, the Village's position is not supported by the facts or sustained by the law. We conclude that the order of the trial court must be affirmed.

It is argued that the Department of Natural Resources has no authority under ch. 144, Stats., to order the Village to construct a public water system. The argument is that ch. 144 is an anti-pollution chapter. The Village reasons that, because the construction of a public water system will not prevent the pollution of ground waters, the Department has no statutory authority to order the construction of a municipal water system. That argument is irrelevant and flatly contradicted by the statutes.

Sec. 144.025(2)(r), Stats., provides in part:

'If the department finds that the absence of a municipal system or plant (defined in sec. 144.01(6), Stats., to include water systems) tends to create a nuisance or menace to health or comfort, it may order the city, village, town or town sanitary district embracing the area where such conditions exist to prepare and file complete plans of a corrective system as provided by s. 144.04, and to construct such system within a specified time.'

The statute is plain and unambiguous. If, on the basis of substantial evidence, the Department finds that the absence of a municipal water system tends to create a nuisance or menace to health or comfort and makes such a finding, it has legislative authority to order the planning and construction of a water system to correct that condition.

While ch. 144, Stats., is devoted, to a considerable extent, to the problems of surface and ground water pollution, the particular statute, sec. 144.025(2) (r), is directed to the nuisance or menace that is caused by the absence of a municipal system, as that is defined in sec. 144.01(6). Moreover, throughout ch. 144, are scattered provisions that are concerned with determining the best sources of water supply (e.g., sec. 144.02(1)(e)), and the very section in which the question at issue in this case appears is sec. 144.025(2)(h), which gives the Department supervisory authority to assist owners in respect to pure water supplies.

The village relies upon the 1956 case of Bino v. Hurley (1956), 273 Wis. 10, 76 N.W.2d 571, to the effect that a village's method of supplying its inhabitants with water is a proprietary function and not governed by ch. 144, Stats. Whatever relevance proprietary-versus-governmental functions in respect to municipal activities might have had in 1956, that relevance was terminated by the case of Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618. Moreover, the dissent of Justice George Currie to the Bino opinion is now accepted by this court. Justice Currie therein properly ignored the proprietary-governmental distinction and pointed out that the whole question of property rights must be considered in a different context because:

'There is no question but that a state, or any political subdivision thereof empowered so to do by the legislature, may exercise the police power to protect the purity of the water supply of its citizens.' Bino, supra, 273 Wis. p. 23, 76 N.W.2d p. 579.

The statements of Justice Currie, even in 1956, were not based upon new law. State ex rel. Martin v. Juneau (1941), 238 Wis. 564, 570, 571, 300 N.W. 187, held, '. . . there can be no question but that the promotion and protection of public health is a matter of statewide concern.'

It is apparent, therefore, that not only does the statute specifically and unambiguously give authority to the Department of Natural Resources under legislative guidelines to mandate the construction of a water system, but in addition such mandate by the legislature is within the police powers that may be exercised by the legislature.

The Village also argues that, even though we were to conclude as we do that the Department has the authority under sec. 144.025(2)(r), Stats., to order the construction of a water system, the order cannot be entered, or at least made effective, until the Village has conducted a referendum of the electorate under sec. 66.065, which ordinarily is used when a municipality acquires a water, heat, light, or power plant. That referendum under sec. 66.065(3) is designed to give the electorate the opportunity to approve the construction or acquisition of a public utility plant and to approve the method of payment. While sec. 66.065 outlines the procedure by which villages may engage in the water utility business and provide a mode of payment, that statute does not limit the state or the legislature. A municipal corporation is a creature of the legislature, and aside from its substantial constitutional home rule powers, which are not at issue here, the legislature may, in its wisdom and at its convenience, direct alternative methods by which a municipal corporation may construct a public facility and, in addition, as provided in ch. 144, direct the circumstances under which a municipality shall be obligated to proceed with improvements.

Chapter 144, Stats., in its policy statement, sec. 144.025(1), says:

'The department of natural resources shall serve as the central unit of state government to protect, maintain and improve the quality and management of the waters of the state, ground and surface, public and private. . . . The purpose of this act is to grant necessary powers and to organize a comprehensive program under a single state agency for the enhancement of the quality management and protection of all waters of the state, ground and surface, public and private.'

It is apparent from this general declaration of state-wide concern for the purity of all waters throughout the state that it was the legislative intent that the opinion of the local electorate, as expressed in a referendum, could not defeat the state's public policy under those circumstances where the Department of Natural Resources adheres to the procedural and substantive standards mandated by the legislature. This does not mean that sec. 66.065, Stats., is meaningless. Any town, city, or village covered by sec. 66.065 is empowered to voluntarily construct or purchase a water utility and is obligated, in that situation, to conduct the referendum.

This court has previously pointed out that sec. 197.01, Stats., referring to the powers of municipalities under the Public Utility Law, is in some circumstances an alternative method to sec. 66.065, Stats., for the acquisition of a public utility. See, Wisconsin Power & Light Co. v. Public Service Comm. (1936), 222 Wis. 25, 32, 267 N.W. 386, and Janes v. Racine (1913), 155 Wis. 1, 12, 143 N.W. 707.

It would appear that, in general, ch. 197, Stats., provides a method whereby a municipality may acquire, by condemnation if necessary, an existing utility or water plant. Sec. 66.065 provides a method whereby a municipality may construct a public utlity on its own volition or may purchase an existing public utility as the result of negotiations. The legislature has already seen fit to provide at least two alternatives by which a municipality can acquire a water system. Sec. 144.025(2)(r) provides a third alternative, to be exercised at the option of the state in the exercise of its police power.

Where, as here, the provisions of ch. 144, Stats., are resorted to, a referendum is unnecessary and inappropriate. As a consequence of the exercise of the state's police power, the municipality is authorized to proceed with the necessary financing and is required to comply with the order to plan, finance, and construct an adequate water system.

These powers of the Department of Natural Resources cannot be invoked unless there is substantial compliance with the legislative standards. The principal standard, and the finding which must be supported by the...